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Virginia is the latest state to consider outlawing the online phenomenon, but free speech advocates urge caution

Posting sexually explicit images online of people without their consent is not OK — that's the argument made by a growing number of activists across the United States. Now a Virginia lawmaker wants to make such acts illegal in his state in response to a growing number of people — mostly women — who are being harassed online.

Democrat Marcus Simon of Falls Church introduced a draft bill in the Virginia House of Delegates Tuesday that would make it illegal to publish sexually explicit pictures of someone without their permission and with “the intent to cause them substantial emotional distress.” The practice, popularly dubbed revenge porn, is already illegal in California and New Jersey.

Nicole Marie Koon, a licensed massage therapist in Fredericksburg, Va., said she recently became a victim of revenge porn when her boyfriend posted a video of her on myex.com after the couple broke up. The platform offered to take the materials down in exchange for a $500 fee, Koon told Al Jazeera.

After she discovered the online videos and images, local police weren't able to help her. “They weren’t sure how to handle it,” she said.

“I want that gone," Koon said. "I don’t want that stuff on the Internet. That’s not who I am. It’s unbelievable there’s nothing anyone can do when an ex posts something like this.”

The legislation introduced in Virginia does not address the issue of sites demanding payment for taking down revenge porn. “[But] the point is that they shouldn’t have to pay,” a spokeswoman for Simon told Al Jazeera. "She shouldn’t have to pay that money. It was a violation. We thought there was a need.”

Online free speech?

Virginia is only the latest state, such as Wisconsin and New York, that have introduced bills against revenge porn. More and more state legislators are trying to curb a practice they consider harmful to victims who are demanding legal protection in a murky area where little exists.

But state laws can be powerless against intermediary platforms such as Facebook hosting third-party content created by users, or websites hosting, but not co-creating, information on former intimate partners. Section 230 of the federal Communications Decency Act effectively protects intermediaries such as Facebook or hosting websites from liability for the actions of others.

Mary Anne Franks, a professor at the University of Miami law school who is a revenge porn expert, told Al Jazeera that regulating online content is very difficult under state law. “If we really want to talk about shutting down distribution, the federal criminal law is really the best way to do that,” she said.

That’s why she argues revenge porn should be criminalized at the federal level in the same way that child pornography, online stalking and copyright infringements are all exceptions to online free speech. YouTube, for example, is federally liable for any content appearing on its website that violates copyright laws, said Franks.

But others have said such a law might violate First Amendment rights. Free speech advocates at the Electronic Frontier Foundation and the American Civil Liberties Union have already expressed concern about possible federal restrictions.

That’s why “we have to be careful to define our terms very clearly and make sure that the scope of the law isn’t too broad,” Franks said.

In Simon's proposal, for example, she said that “while it is very encouraging that Virginia has taken a step towards addressing nonconsensual pornography, the bill has serious problems both with regard to protecting victims and to protecting free speech rights.”

“The ‘intent to cause substantial emotional distress’ requirement essentially hands a free pass to any defendant who can claim that he was motivated by money, notoriety, entertainment, or any other goal. The focus should be on lack of consent, not presence of intent," said Franks.

"Furthermore,” she said, “the bill's broad language prohibiting the disclosure of images of people ‘in a state of undress’ is likely unconstitutionally broad.” Sharing images of, for example, a woman in a bikini or underwear shouldn’t necessarily be illegal.

But, Franks concluded, “some expressions [of free speech] are just considered so socially harmful and don't contribute any benefits to society,” meaning they should be regulated.